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JR - Constitutional Basis
The Constitutional Basis of JR
So, while - under the exhaustion doctrine - JRs can be viewed as procedures of 'last resort', they are - as a matter of civil rights generally - essential procedures. Indeed, if the legislature started to abolish appeal rights wholesale (which it could do with it's control over statutes), judicial review (as our American friends are discovering) might be almost all that we would have left to combat the abusive intentions of an authoritarian government.
This privileged status of JRs is due to their constitutional grounding under s.96 of the Constitution Act, 1867 [BizTech v. Accreditation Canada (Div Ct, 2025), para 133]. Section 96 is a simple provision which requires the creation of judges of the Superior Courts (often called 's.96 courts'), but it has been read (thankfully) to justify the entire robust third branch ('judiciary') of our government structure - next to the legislature and the executive (cabinet).
Judicial review is the foundational procedure of the court's power, including it's authority over these other branches. But it has 'justiciability' limits, with which I deal next.
. Cycle Toronto v. Ontario (Attorney General)
In Cycle Toronto v. Ontario (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown appeal, this brought against the granting of a JR which found that requiring "the removal of bicycle lanes from three downtown Toronto streets" under HTA s.195.6 ['Existing lanes in the City of Toronto, direction to restore'] and related regulations breached Charter s.7 ['life, liberty and security of the person'].
The court considers the role of JR in a Charter context:The role of the courts on Charter challenges
[20] It is important to avoid approaching judicial review under the Charter in a technical or mechanical fashion. The Charter is part of a larger democratic constitutional order and must be interpreted and applied in the context of that order and all that it entails.
[21] The starting point is this: ours is a Westminster parliamentary democracy with well-defined constitutional roles. As the preamble to the Constitution Act, 1867 states, Canada has “a Constitution similar in Principle to that of the United Kingdom”, a constitution that by 1867 had been directing the political branches of government for centuries. In that system, the executive proposes legislation but the decisions whether to legislate and how to do so belong to the legislature. Courts play no role in the policy development process, no role in the choices made by the government in proposing legislation, and no role in the legislature’s decision to pass a law. The role of the courts is to adjudicate disputes arising under the law once it is enacted. This separation of powers is a bedrock principle of constitutional law and it is uncontroversial in our legal tradition: see Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at paras. 27-31; The Honourable Malcolm Rowe, Chris Puskas and Allyse Cruise, “The Separation of Powers in Canada” (2024) 1 S.C.L.R. (3d) 323.
[22] Now, courts learn a great deal about a matter in the course of judicial review proceedings, and judges may be tempted to comment on matters of policy. The temptation to do so may be great; judges may suppose that they have much to offer to public policy debate. But the temptation must be resisted. It is not just that courts have no expertise in policy making – no expertise in making the sorts of polycentric decisions that legislatures make routinely. It is illegitimate for courts to involve themselves in matters of legislative policy. Policy is for politics. Whether courts think legislation is wise or unwise, is irrelevant so far as its constitutionality is concerned, and constitutionality is the only question with which courts are legitimately concerned: see e.g., Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693, at para. 3; R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 173; and Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123, at p. 1142, per Dickson C.J.
[23] With respect, the application judge lost sight of this principle when, in the course of outlining the background to the application, he weighed in on policy and political considerations. He commented extensively on the political background to the legislation, recounting remarks by the Premier and Minister of Transportation, contested data concerning road use, and exchanges at legislative committee proceedings. He quoted at length from members of the public and organizations opposed to passage of the legislation, as well as the Mayor of Toronto and the City Manager – all of this prior to addressing the only matter with which the court was properly concerned: whether the legislation violated the Charter. Indeed, the application judge’s decision is replete with criticism not only of the legislation but also of the government’s conduct in promoting its passage. He went so far as to express concern that the legislation was passed despite the government’s internal policy advice and public criticism of the bill.
[24] None of this was relevant to the task before him.
[25] Lest there be any doubt: in formulating policy or legislating, neither the government nor the legislature is under any obligation to accept policy advice, whether from bureaucrats, experts, or members of the public. The choices they make are the stuff of politics. We are governed by those whom we elect and they are accountable to the people for the choices they make, not to the courts.
[26] It is important to remember that judicial independence is a two-way street: the government and legislature must obviously respect the independence of the courts, but courts must respect the roles and responsibilities of the other branches of government. Judicial review under the Charter is not an occasion for courts to comment on or critique policy or political decisions, as Tulloch C.J.O. explained in Dorceus v. Ontario, 2026 ONCA 321, at paras. 23-24:[T]he cornerstone of the separation of powers is mutual respect. ...
Because respect is reciprocal, the judiciary must remain mindful not to intrude into the domains of the political branches. The courts of law exist to resolve legal disputes. The courtroom is not a political forum. Nor is it a proxy for the public inquiry process in which the policy judgments of the legislative and executive branches can be second-guessed and re-weighed. These differences between the judicial function and the political arena must be preserved. (Citations omitted.) . BizTech v. Accreditation Canada
In BizTech v. Accreditation Canada (Div Ct, 2025) the Divisional Court considered what are essentially two JRs, these opposing decisions by Accreditation Canada and the Superintendent of Career Colleges [under the Ontario Career Colleges Act, 2005], these resulting in the revocation of a college's educational program which "triggered a statutory right by BizTech students in the DMS Program to a full refund of their fees."
The court considers the constitutional status of judicial reviews (JR), here in the context of determining whether JR can be "a proceeding" under Arbitration Act s.7(1) ['Stay'] and thus whether the court can exercise it's discretion to hear it or not:[133] When it comes to the stay of this judicial review proceeding, the starting point of the analysis is that judicial review by the courts is protected by s. 96 of the Constitution Act, 1867. It is a cornerstone of our justice system. And legislative lawmakers cannot remove the court’s ability to conduct judicial review: Ontario Place Protectors v. Ontario, 2025 ONCA 183, at para 33; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 563, at para. 24. Thus, the fact the JRPA does not include mandatory language excluding arbitration is legally irrelevant given the constitutional status of judicial review, its relationship to the rule of law and the status of superior courts. As Lorne Sossin J.A. explains in Practice and Procedure Before Administrative Tribunals (Toronto: Ontario: Thomson Reuters), § 38:2. Nature, Source and Purpose of Judicial Review:Judicial review refers to the constitutional power, right and responsibility of the superior courts to ensure that state authority is exercised in accordance with the law. It is a vital aspect of the rule of law. As such the ability of courts to judicially review state action is not dependant on a legislature creating such a right. Unlike a right of appeal, which exists only to the extent that a legislature creates it, judicial review exists independent of legislative desire or creation as an inherent power of the superior courts flowing from sections 96 to 101 of the Constitution Act, 1867.
By virtue of the concept of the rule of law, all exercises of public authority must find their source in law. Furthermore, all decision-making powers have legal limits, derived from the enabling legislation, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep these limits. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. [134] The JRPA is thus distinct from other statutes in this regard.
[135] However, this recognition does not answer the question before me. As urged in Peace River, the answer depends very much on the legal context, the terms of the arbitration agreement, and the specific facts of the case.
[136] The constitutional right to seek judicial review does not mean “a right to require the court to undertake judicial review” regardless of the nature of the question before it: Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3, at para. 30; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), 1989 CanLII 73 (SCC), [1989] 2 S.C.R. 49, at p. 93.
[137] Discretion is inherent in undertaking the task of judicial review. At minimum, the court must determine whether judicial review is appropriate. In deciding that, if the court determines that one of the discretionary bases for refusing a remedy is present, they may decline to consider the merits of the judicial review application. The court also has the discretion to refuse to grant a remedy, even if they find that the decision under review is unreasonable: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 191, at para. 54; ss. 2(2), (5) of the JRPA.
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